Corey Brothers, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1967

162 N.L.R.B. 1253 (N.L.R.B. 1967)

COREY BROTHERS, INC. 1253
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discharge employees or discriminate in regard to their hire,
tenure of employment , or any term or condition of employment because they
have engaged in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the right to self-organization , to form , join, or
assist labor organizations , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities.
WE WILL offer to Loyd Lewis immediate and full reinstatement to his for-
mer or substantially equivalent position , without prejudice to his seniority and
other rights and privileges previously enjoyed.
WE WILL make whole Loyd Lewis for any loss he may have suffered by
reason of the discrimination against him.
NEUHOFF BROS. PACKERS INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Room
8A24, Federal Office Building , 819 Taylor Street , Fort Worth, Texas 76102, Tele-
phone 334-2931.
Corey Brothers , Inc. and Chauffeurs , Teamsters & Helpers Local
Union No. 175, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, Petitioner. Case 9-RC-6648. January 27, 1967
DECISION AND DIRECTION
Pursuant to an order directing hearing in the above-entitled pro-
ceeding, issued by the National Labor Relations Board on June 29,
1966,1 the Regional Director for Region 9 issued a notice of hearing
on challenged ballots. The hearing was held on August 4, 1966,
before Hearing Officer Jack V. Baker, duly designated for that pur-
pose." The Employer and the Petitioner were represented by coun-
1 Not published in NLRB volumes.
The tally of ballots showed that there were approximately 14 eligible voters , and that
17 ballots were cast , of which 7 were for, and 5 against , the Petitioner , and 5 were
challenged . In the absence of exceptions , the Board adopted the Regional Director ' s recom-
mendation that the challenges to the ballots of Opie Schoolcraft and James Thomas be
sustained . The Board further ordered that a hearing be held for the purpose of receiving
evidence to resolve the credibility questions involved in the challenges to the ballots of
Peter Biagi and Thomas Bardwell , and to resolve the question of Raymond Miller's em-
ployment status at the time of the election.
162 NLRB No. 115.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel and each was given full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence relevant to the
issues.'
On September 29, 1966, the Hearing Officer issued his report and
recommendations on the challenged ballots, in which he recom-
mended that all three challenges be sustained. The Employer filed
timely exceptions to the Hearing Officer's report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all truckdrivers and
warehousemen employed at the Employer's place of business at 1410
Lewis Street, Charleston, West Virginia, excluding office clerical
employees, salesmen, guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
5. The Board has reviewed the rulings of the Hearing Officer
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Hearing Officer's report, the Employer's exceptions and sup-
porting analysis and argument, and the entire record in this case,
and hereby adopts the findings and recommendations of the Hearing
Officer only to the extent consistent herewith.4
The Hearing Officer, finding Peter Biagi and Thomas Bardwell to
be supervisors within the meaning of the Act, recommended that the
challenges to their ballots be sustained. For the reasons set forth
below, we find merit in the Employer's exceptions.
The Employer operates a wholesale produce and frozen food busi-
ness. The operation consists of a warehouse, where fresh produce is
3 A representative of the Regional Director also appeared at the hearing , examined
witnesses , and introduced evidence relevant to the issues
4 The Hearing Officer recommended that the challenge to the ballot of Raymond Miller
be sustained on the ground that, on the date of the election conducted herein, he was not
an employee of the Employer within the meaning of the Act. In the absence of exceptions
thereto, the Board adopts that recommendation pro forma.
COREY BROTHERS, INC. 1255
stored in a cooler, and a frozen food freezer, where frozen foods
are stored, until loaded on the Employer's trucks for delivery.
Philip Corey, president, and David Corey, vice president, equally
own all corporate stock. Charles Nassef, Sr., is secretary-treasurer,
controller, and bookkeeper. The parties agree all three should be
excluded. Philip and David Corey, together with two salesmen (also
excluded) do the selling. Philip does virtually all the buying, and
is in general control of the day-to-day operation of the business.
Working in the warehouse are Biagi, one of the alleged super-
visors, and approximately 10 employees, who are classified either as
truckdrivers or warehousemen. Working in the freezer (located
across the street from the warehouse), are Bardwell, the other
alleged supervisor, and employees Walls and Jenkins.
The Warehouse Operation
Philip and David Corey receive customer orders. Philip deter-
mines the over-the-road routes and schedules, and passes the local
order tickets on to Biagi. Biagi is usually the first man to arrive at
the warehouse each morning. He takes the local orders (bills) and
from them makes lists of produce items which are less than case lot
(called "short-lists"). As the drivers and warehousemen arrive, they
pick up the short-lists and bills from a designated spot, go to the
cooler, and take from it the items listed, placing them to the front of
the cooler. After Biagi has made up his short-lists, he arranges all
the local orders in delivery route sequence, pursuant to established
general route patterns.' He then goes into the cooler and assists in
the gathering of items (called "filling the bills"). Generally, Biagi
calls off the items on the bills and lists to the drivers and warehouse-
men who gather the items.
When all bills are filled, the items are moved to the loading dock.
Biagi calls out the name of a driver ,6 that driver backs into the dock,
and Biagi reads off the items to be loaded on the truck. As each item
is loaded, Biagi checks it off the corresponding bills or lists. When
the loading is complete, Biagi tells the driver whether he has any
frozen food to pick up. If so, the driver proceeds to the freezer; if
not, he goes out to deliver. The next driver then backs into the dock,
and the procedure is repeated. The drivers return during each shift
for other loads; the same procedure is followed. Biagi often assists
8 When Biagi is absent , this job is done by either of two employees-Walter Kidd
or Nader Cassis. Kidd, apparently classified as a warehouseman, spends most of his time
unloading boxcars.
a Biagi states that, when he chooses to call one driver before another, it is either be-
cause that driver has reported in first, or because his truck will contain an order which,
by Philip Corey's orders , should receive priority. Often the drivers themselves determine
who shall back in first.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the physical work involved in filling the bills, moving the stock,
and loading the trucks.?
After all deliveries are completed for the day, the drivers check
in the money received during each shift with Philip Corey." They
then proceed to sweep up the warehouse. The sweepup is started
automatically by the drivers as they complete their deliveries. When
the job is finished, Biagi determines whether there is anything fur-
ther to be done. When the schedule shows that a trailer is coming
in during the night, Biagi will tell the drivers and warehousemen
that they must report to work at 4 a.m. the next day,9 and will deter-
mine if the cooler must be cleaned. Biagi sometimes participates in
the sweepup ; it is also sometimes done without him being present.
Philip Corey is "always" the last man out of the warehouse.10
The Freezer Operation
Walls and Jenkins report at either 4 or 5 a.m., as do the ware-
housemen and drivers. Walls is thoroughly acquainted with the
location of all items in the freezer "locker." At the time of the hear-
ing, Jenkins was a new employee. The two begin the day by getting
copies of the bills from the warehouse. They then proceed to "fill
the bills" in the same manner as described above for the cooler; i.e.,
the items are pulled from stock and placed by the freezer door.
Bardwell usually reports about 7 a.m. He spends the major portion
of his day unloading frozen food from boxcars, using a forklift
truck to transport the food to the freezer locker, where he puts it
in stock.
When a driver pulls into the freezer, he hands his tickets to one
of the three who work there, and that person will fill the bill (if it
hasn't already been filled), and then put the load on the truck, call-
ing out the items against the bills. If Bardwell is not busy unloading
a boxcar, he will take the tickets, and either fill the order himself,
or call to Jenkins or Walls to fill it and load the truck while he
v Record testimony shows that David Corey is usually present from the beginning of the
shifts , and he sporadically participates in various parts of the overall procedures and work
of the warehouse . Philip Corey reportedly runs the entire operation "with an iron hand,"
often calling off the bills , and checking off the items during loading When Philip is thus
engaged, Biagi joins in the physical work. One employee testified to taking orders from
Philip every day.
6 When a driver reports an item as missing at a point of delivery , Philip Corey proceeds
to determine first whether it was left elsewhere by mistake . If not, he then asks Biagi if
he recalls checking it onto the driver's truck . If Biagi says he so recalls , and the item is
not located , the driver must pay for the loss.
9 I e , if they are not already scheduled for 4 a in. All employees work 6 days per week,
reporting three mornings at 4, and three at 5.
10 Secretary-Treasurer Nassef testified that one of the Coreys is "always " present, but
that on those rare occasions when both are missing he, Nassef , is in complete charge of
all operations.
COREY BROTHERS, INC. 1257
checks the items onto the truck. Walls punches out between 3 and
4 p.m. Bardwell usually works on until about 5. Jenkins, when order
filling and stocking are finished, reports to the warehouse and helps
in the sweepup.
The warehousemen and drivers receive $1.25 per hour, and $1.87
per hour for overtime, averaging about $85 per week. One driver
averages about $95 per week. Biagi receives a salary of $150 per
week, and Bardwell $155 per week. Biagi has been with Corey
Brothers about 15 years, and Bardwell about 27 years. All but Biagi
and Bardwell punch a clock. Biagi and Bardwell are paid for time
off due to sickness, and are allowed some holidays and a 1-week
vacation each year with pay. Drivers and warehousemen may choose
to participate in a hospitalization insurance plan, half the cost of
which the Employer will pay. They otherwise receive no fringe
benefits. However, both Kidd and Walls are also allowed a week's
vacation and are paid for time off due to sickness. Both Kidd and
Walls punch a clock and are paid on the basis of $1.50 per hour;
however, each receives a weekly guarantee of $110 and has on occa-
sion earned as much as $130 in a week.
Company policy is set by Philip Corey and Nassef, who talk over
problems each week. Neither Biagi nor Bardwell participates in
these informal meetings. Neither Biagi nor Bardwell has authority
to hire,h1 discharge, release '12 suspend,' transfer, lay off, recall ,13 pro-
mote, reward, discipline, 14 settle grievances, or effectively recommend
action as to any of these matters. Indeed, Nassef and Biagi testified
that only David and Philip possess such authority.
Although Biagi (who is described by Nassef as a "shipping clerk")
appears to give routine directions pertaining to the overall function-
ing of the warehouse and local routing, there is no showing that he
'- That Biagi asked Philip Corey to consider a relative for a job, whom Philip there-
after hired, we do not view as significant.
12 One employee testified that Biagi has on occasion allowed him to go home early.
Biagi denied having done so. Nassef and Biagi testified that only Philip Corey has such
authority , but that Philip Corey will often inquire of Biagi whether a man can be spared
before he ( Philip ) grants such permission . Even if the employee ' s testimony be taken as
true, the sporadic exercise of such limited authority would not constitute Biagi a
supervisor.
13 An employee who had a falling out with David Corey was "sent home " by the latter.
It is not clear whether this was meant by David to be a discharge or a temporary sus-
pension. In any event , upon being informed by Biagi that he (Biagi ) was shorthanded in
the warehouse, David reconsidered his action and told Biagi he could call the employee
back. We do not view David 's reversal of his action as establishing authority in Biagi
to hire or discharge , or even to effectively recommend such action.
14 At one time, Bardwell had a falling out with a helper in the freezer , and told hint to
"go home ;" on his way out of the warehouse , however , Philip Corey "overruled" Barchvell
by allowing the employee to work the remainder of the day in the warehouse . We do not
view this incident as establishing authority in Bardwell to discipline; if anything, it
suggests the opposite.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is held responsible for such functioning, or that he makes decisions
requiring the exercise of independent judgment. He is not respon-
sible, for example, for seeing that enough drivers or warehousemen
have reported for work, that shipments have arrived, or that inven-
tory is kept at a given level. What directions he gives are usually
dictated by events over which he has no control (as, for example,
the arrival of a shipment, and the bills representing customers'
orders).
It would seem that Bardwell gives no direction whatever to
employee Walls. The latter has complete knowledge of the freezer
operation, and indeed sets up the operation and runs it for 2 to 3
hours before Bardwell reports. The other employee in the freezer
performs a function which by its very nature would appear to
demand nothing more than routine direction.
Although both Biagi and Bardwell are paid more and receive
more fringe benefits than others in their respective departments,
both have accumulated through long experience a special knowledge
of the Employer's business and skills peculiarly valuable to their
Employer. They also work, on the average, longer hours than others
in their departments.- Others (Kidd and Walls) who are not con-
sidered supervisors also receive similar special compensations in the
form of wages and fringe benefits. Furthermore, it is important to
note once again that one or both of the Corey brothers are always
on hand. Philip spends much time on the warehouse floor, and at the
loading dock, and occasionally helps out at the freezer dock. The
record seems to indicate clearly that, when Philip is present, it is he
alone who-gives orders or directions, of whatever consequence.
On the basis of the foregoing considerations and the record as a
whole, we cannot agree with the Hearing Officer's conclusions.. Biagi
and Bardwell do not, in our opinion, possess authority, or exercise
independent judgment, or responsibly, direct employees in a man-
ner or to a degree sufficient to constitute them supervisors within
the meaning of the Act.16 Accordingly, we hereby overrule the
challenges to the ballots of Peter Biagi and Thomas Bardwell and
shall direct that those ballots be opened and counted.
[The Board directed that the Regional Director for Region 9
open and count the ballots of Peter Biagi and Thomas Bardwell and
serve on the parties a revised tally of ballots, and issue certification.]
to According to the uncontradicted testimony of Nassef.
11 Cf Welsh Farms Ice Cream, Inc., 161 NLRB 748.